Common Assault in the ACT

This article was prepared by Go To Court Lawyers, Australia's largest legal service. For legal advice specific to your situation, call 1300 636 846.

In the ACT, there are numerous offences involving assault including common assault, assault with intent to commit another offence, assault occasioning actual bodily harm and assault of a frontline community service provider. This page deals with common assault in the ACT.

Common assault charges are among the most frequently prosecuted criminal offences in the Australian Capital Territory. Understanding the legal implications, potential penalties, and available defences is crucial for anyone facing such charges. The ACT criminal justice system treats assault matters seriously, particularly when they involve family violence or vulnerable victims.

Legislation governing common assault in the ACT

Common assault in the Australian Capital Territory is contained in section 26 of the Crimes Act 1900. A maximum penalty of two years imprisonment applies.

If the offence involves family violence, it is an aggravated offence, and a maximum penalty of three years imprisonment applies. The legislation defines family violence broadly to include domestic relationships, intimate personal relationships, and family members. This enhanced penalty reflects the ACT's commitment to addressing domestic and family violence.

Related assault offences under the Crimes Act

The Crimes Act 1900 (ACT) also contains several other assault-related offences, including assault occasioning actual bodily harm under section 24, which carries a maximum penalty of five years imprisonment. Section 25 covers recklessly inflicting grievous bodily harm, while section 19 deals with intentionally inflicting grievous bodily harm.

What is common assault?

A common assault can occur without the victim sustaining injury. It can even occur without any physical contact between the offender and the victim.

A person is guilty of common assault if they intentionally or recklessly:

• Touch another person without that person's consent and without lawful excuse;
• Cause another person to apprehend immediate physical contact without the person's consent and without lawful excuse.

A common assault may consist of a push, a punch, a slap or a headbutt. It may also consist of an act that does not involve physical contact, such as raising a fist as if to hit a person or throwing an object in a person's direction.

Elements the prosecution must prove

For a successful prosecution, the Crown must establish beyond reasonable doubt that the accused either intentionally or recklessly applied force to another person without consent, or caused another person to apprehend the immediate application of force. The mental element of intention or recklessness is crucial, as accidental contact typically does not constitute assault.

Examples of common assault scenarios

Common assault charges often arise from situations including bar fights, domestic disputes, road rage incidents, and workplace confrontations. The offence can include spitting on someone, grabbing someone's arm during an argument, or making threatening gestures that cause fear of immediate harm. Even minimal physical contact, such as poking someone aggressively, can constitute common assault if done without consent.

Penalty for common assault

While the offence of common assault carries a maximum penalty of two years imprisonment (or three if the offence is aggravated), a court may choose to impose a non-custodial sentence if this is appropriate in the circumstances. This may be a fine, a good behaviour order, or a community service order.

Sentencing considerations

ACT courts consider various factors when determining an appropriate sentence, including the seriousness of the assault, the degree of injury caused, the relationship between the parties, any prior criminal history, and the offender's personal circumstances. First-time offenders with good character references may receive more lenient sentences, while repeat offenders or those who assault vulnerable victims face harsher penalties.

Alternative sentencing options

Courts in the ACT have access to various sentencing options beyond imprisonment, including good behaviour orders, community service orders, fines, and intensive correction orders. Restorative justice conferences may also be available in appropriate cases, allowing offenders to meet with victims and community representatives to address the harm caused.

Jurisdiction

Common assault is dealt with in the summary jurisdiction. This is the Magistrates Court for an accused person who is an adult or the Children's Court for an accused who is under 18.

The Magistrates Court handles the vast majority of common assault matters in the ACT. Proceedings typically commence with the filing of charges by ACT Policing, followed by court appearances where the accused can enter a plea. Legal representation is strongly recommended, as experienced criminal lawyers can negotiate with prosecutors and present the strongest possible defence.

Defences to common assault in the ACT

A person who is charged with common assault in the ACT may rely on a number of legal defences. These include the following.

The defence of self-defence

A person is not criminally responsible for an act done in self-defence or in defence of another person or of property. If an assault is committed in self-defence, the accused will be found not guilty if the court is satisfied that:

• they reasonably believed that their actions were necessary in self-defence; and
• their actions were reasonably proportionate to the threat they perceived.

Self-defence is governed by section 42 of the Crimes Act 1900 (ACT) and requires both subjective belief in the necessity of defensive action and objective reasonableness of that belief and the response.

The defence of duress

A person is not guilty of a common assault if they were acting under duress. Duress exists when another person makes a serious threat to the accused, and they act out of fear that the threat will be carried out. For this defence to succeed, the threat must be serious enough that an ordinary person in similar circumstances would yield to it.

The defence of mental impairment

A person is not guilty of an offence if at the time they carried out the act, they were mentally impaired and could not understand the nature of their actions or could not understand that their actions were wrong. A mental impairment may be a mental illness (permanent or temporary) or an intellectual disability.

The defence of immature age

A person cannot be found guilty of an offence if they are under the age of criminal liability, which is ten. A person who is under 14 can only be found guilty of an offence if the prosecution can show that they had the capacity to understand that their actions were wrong.

Police powers and arrest procedures

ACT Policing has significant powers when investigating common assault allegations. Officers can arrest suspected offenders without a warrant if they believe an assault has occurred and that arrest is necessary to prevent further offences, preserve evidence, or ensure court attendance.

Apprehended Violence Orders

In cases involving family violence or ongoing threats, police may seek an Apprehended Violence Order (AVO) under the Domestic Violence and Protection Orders Act 2008 (ACT). These orders can impose conditions such as prohibiting contact with the victim or requiring the offender to stay away from certain locations.

Police interviews and evidence gathering

Suspects have the right to remain silent during police questioning and should seek legal advice before participating in any interview. Police typically gather evidence including witness statements, CCTV footage, photographs of injuries, and faqs: - question: 'Can I be charged with common assault even if I didn''t physically touch the victim?' answer: 'Yes, you can be charged with common assault in the ACT without any physical contact. Common assault occurs when you cause another person to apprehend immediate physical contact without their consent, such as raising your fist as if to hit someone or throwing an object in their direction. The offence focuses on the victim''s reasonable fear of immediate harm rather than actual physical contact.' - question: 'What is the maximum penalty for common assault in the ACT?' answer: 'The maximum penalty for common assault in the ACT is two years imprisonment under section 26 of the Crimes Act 1900. However, if the offence involves family violence, it becomes an aggravated offence with a maximum penalty of three years imprisonment. This enhanced penalty reflects the ACT''s serious approach to domestic and family violence matters within the criminal justice system.' - question: 'How much does it cost to get legal advice for a common assault charge?' answer: 'Go To Court Lawyers offers a fixed consultation fee of $295 for common assault matters in the ACT. This consultation will provide you with expert legal advice about your charges, potential defences, and the best course of action. Getting early legal advice is crucial as common assault charges can result in serious penalties including imprisonment and a criminal record.' - question: 'How can a criminal lawyer help me with my common assault charge?' answer: 'A criminal lawyer can analyse the prosecution evidence, identify potential defences such as self-defence or lack of intent, and challenge whether all elements of the offence can be proven beyond reasonable doubt. They can negotiate with prosecutors for reduced charges, represent you in court, prepare your case strategy, and work to achieve the best possible outcome including avoiding a conviction.' - question: 'Is there a time limit for police to charge me with common assault in the ACT?' answer: 'Yes, there are time limits for prosecuting common assault in the ACT. As a summary offence typically heard in the Magistrates Court, prosecution must generally commence within 12 months of the alleged incident. However, if circumstances involve more serious elements or family violence, different time limits may apply. It''s crucial to seek legal advice immediately if you''re under investigation.' ---